Fire and Water Make Steam - Redefining the Role of Competition Law in TRIPS

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The paper points out the relevance of competition law to international issues of Intellectual Property Law (IPR) and demonstrates how competition law internationally has come to function as an indispensable instrument to balance IPR. The perspective is international and focused on TRIPS. The rules in TRIPS which define the obligations of member states to protect rightholders are detailed, comprehensive, and aimed at a high level of protection. The few rules in the Treaty which deals with competition law and the role of competition as a balancing instrument to IPR are weak and imprecise. This disparity does not reflect the conclusion in national law where it is now generally acknowledged that IPR and competition law serve the same goal, viz. dynamic efficiency and consumer welfare and where competition law has come to function as a second tier of balancing norms. The paper claims that the weakness of the competition rules in TRIPS may be counterproductive towards the broader goals of IPR protection. From a development point of view it is pointed out that an effective and well function market is necessary in order for developing countries to reap any benefits arising out of IPR protection. To innovation it is submitted that IPR protection e.g. of interfaces or in markets characterised by network effects may involve risks of monopolisation which require access to effective rules of competition law. The paper finally recommends concrete changes to TRIPS in the form of mandatory rules which prevent abuse in licensing contracts and a rule which makes it possible to gain access to IPR which is indispensable for competition.
Original languageEnglish
Title of host publicationIntellectual Property Rights in a Fair World Trade System : Proposals for Reform of TRIPS
EditorsAnnette Kur
Number of pages50
Place of PublicationCheltenham, UK / Northampton, MA, USA
PublisherEdward Elgar Publishing
Publication date2011
ISBN (Print)9781849800099
Publication statusPublished - 2011

ID: 33221625